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HUGHES v. HUGHES (09/12/61)

September 12, 1961

HUGHES
v.
HUGHES, APPELLANT.



Appeal, No. 170, Oct. T., 1961, from decree of Court of Common Pleas No. 6 of Philadelphia County, March T., 1947, No. 2309, in case of John V. Hughes v. Edith I. Hughes. Decree affirmed.

COUNSEL

Henry D. O'Connor, for appellant.

Joseph Alessandroni, Jr., for appellee.

Before Ervin, Wright, Woodside, Watkins, Montgomery, and Flood, JJ. (rhodes, P.j., absent).

Author: Wright

[ 196 Pa. Super. Page 145]

OPINION BY WRIGHT, J.

On April 1, 1947, John V. Hughes filed a complaint in divorce a.v.m. against his wife, Edith I. Hughes,

[ 196 Pa. Super. Page 146]

    nee Sena, on the ground of indignities to the person. The parties were thereafter reconciled and lived together until August 15, 1953, on which date the wife left the marital domicile. An amended complaint was filed by leave of court on July 13, 1959, adding desertion as a second ground for the divorce. After taking testimony at four lengthy hearings, the Master found that the husband was not entitled to a divorce on the ground of indignities, but recommended a decree on the ground of desertion. The court below dismissed the wife's exceptions to the report of the Master, and directed the issuance of a final decree. The wife has appealed.

The parties were married on May 16, 1925 by a Justice of the Peace in Media, Pennsylvania.*fn1 The husband is fifty-six years of age and is now an insurance agent. The wife is fifty-five years of age and has been variously employed, mostly as a waitress. Six children were born to this union, of whom five are living. The parties are of different religious faiths, and the initial difficulty arose over the baptism of the first child. There is a voluminous original record, and we will not burden this opinion by discussing it in great detail. In addition to his own testimony, the husband produced five lay witnesses and one medical witness. In addition to her own testimony, the defendant offered the testimony of eight witnesses. The husband's theory was that the wife falsely accused him of improper relations with other women, that she spied on him, made scenes in public, and assaulted him on various occasions. The wife's theory was that her husband taunted her with his extra-marital affairs, that he would stay out at night, that he refused to engage in sexual relations

[ 196 Pa. Super. Page 147]

    with her, and that he did not support her properly.

On the pivotal issue of desertion, the husband testified as follows: "A. It was very bad ... She always used to say to me, 'As soon as these children are old enough to take care of themselves you can go fish for yourself because I am going to leave you as soon as the children are old enough to take care of themselves'. So on August 15, 1953 ... When I got home at six o'clock at night I walked in the door and I looked around and everything was gone except a few odd pieces of furniture ... Q. You lived at this address for how long after Mrs. Hughes left? A. I lived there from August 15th to October 1st; about a month and a half. Q. Did you get in touch with her during that time? A. Well, for about three weeks I didn't know where she was because she didn't leave no address and I finally found out where she was living and I went there ... I used to go there to see the daughter every once in a while and I would speak to her, but she wouldn't have anything to do with me. She wouldn't come back with me. Q. Did you ask her to? A. Yes, I asked her several times. Q. What was her reply? A. She just said that she wouldn't have anything to do with me. She told me when the children got raised she was going to leave me and that was that. She had no further use for me. The children were raised. I just served a purpose". The wife admitted that she "moved out without him knowing it", and that she ...


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